By: WBG, LLP Published: January 2010

New EPA Rule Will Affect Owners and Contractors Performing Renovation, Repair or Painting Work.

New EPA Rule Will Affect Owners and Contractors Performing Renovation, Repair or Painting Work  

Alert:  

The EPA has issued a new rule which will affect owners and contractors performing renovation, repair, or painting work on housing, schools, or child-occupied facilities constructed prior to 1978.  Under the rule, which is aimed at minimizing lead exposure, certification must be obtained from the EPA prior to starting the work.  Certification involves an application process and requires a demonstrated understanding of lead-safe work practices.  Violators of the rule are subject to civil penalties of up to $25,000 per day and criminal sanctions of up to a year in prison.  

Summary:  

The EPA has issued a new rule, 40 C.F.R. §745.80 et. seq., effective April 2010, which will affect owners and contractors performing renovation, repair or painting work on housing, schools, or child-occupied facilities constructed prior to 1978.  Under the rule, which is aimed at minimizing lead exposure, certification must be obtained from the EPA prior to starting the work.  Certification involves an application process and requires a demonstrated understanding of lead-safe work practices.  Upon receipt of the certification application, the EPA has ninety (90) days within which to approve or reject the application.  

The applicability of the rule is presumed for each targeted project (i.e. the renovation, repair or painting of housing, schools, or child-occupied facilities constructed prior to 1978).  Accordingly, the need for certification is presumed for each targeted project.  However, the presumption can be rebutted by an inspector’s written determination stating that the components affected by the renovation are free of paint or other surface coatings containing lead.  The rule will also not apply to “minor maintenance or repairs,” which are defined as projects where less than six square feet of lead-based paint is disturbed per room on the interior of the building, or where less than 20 square feet of lead-based paint is disturbed on the exterior.  Notably, under the rule’s express terms, window replacement is not a “minor maintenance or repair.”  

The consequences of non-compliance can be severe.  Under the rule, the EPA Administrator is authorized to impose civil penalties of up to $25,000 per day and criminal sanctions of up to one year in prison for violations of the rule.  Contractors and owners engaged in renovating, repairing, or painting any of the targeted projects should 
take steps now to ensure compliance with the new rule prior to April of 2010.  

About Welby, Brady & Greenblatt LLP Welby, Brady & Greenblatt LLP represents a wide range of entities within the construction and real estate industries including general contractors, subcontractors, sureties, developers, owners, suppliers, engineers, and home owners with core competencies, such as construction law and litigation, real estate development, labor law, OSHA compliance and mediation and arbitration. The firm is headquartered in White Plains, New York with offices in Cranford, New Jersey and Stamford, Connecticut. The firm’s website can be found at www.wbgllp.com. 

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